Impressive book!

Posted by David Hardy · 4 January 2014 02:27 PM

"Jury Nullification: The Evolution of a Doctrine" by attorney Clay Conrad. 300+ pages long, it traces the evolution of what the author prefers to call jury independence. Essentially, at common law, up through our own Framing, and for a generation thereafter, juries were judges of both fact and law. Attorneys would argue the law to them (easier in the days when the law was Blackstone's treatise) and they would decide what it meant. Some judges would, at most, instruct on the law, tell the jury they'd heard argument on it, but suggest that they should give weight to the judge's interpretation since his advice was impartial.

In the mid 19th centuries, judges began to assert that their instructions WERE the law, and to forbid legal argument that contradicted their instructions. By the end of that century they were asserting that jurors' oaths bound them to follow the court's view of the law. The author then proceeds to answer objections to nullification. Historically, he suggests, the broadest use of outright nullification came from opposition to the Alien and Sedition Acts and to the Fugitive Slave Act. (The latter did not allow an alleged slave to obtain a jury trial, but did allow a person charged with aiding him in his escape to obtain one, and in free States juries were happy to acquit despite the evidence).